Actual Statute of Limitations

It seems to me that every credit site has it's own version of the SOL for credit card debt. I have been searching for the actual statute that defines the SOL for the State of Illinois and I think I found the reference at a legitimate state site :735 ILCS 5/13-205 et seq

http://www.legis.state.il.us/ilcs/ch735/ch735act5articles/ch735act5sub80.htm .

Problem is, I am unable to determine if 205 or 206 apply to open ended accounts such as credit cards or if there is a completely different statute elsewhere.

I have seen so many variations on this I don't know what to believe. I have seen 4,5,6,and 10 years. Can someone post a definitive answer or reference actual case law that would uphold his or her opinion? ...perhaps even for other states to help others with the same question.

 

The Illinois Uniform Commercial Code can be found, in it's entirity, here:

http://www.legis.state.il.us/ilcs/ch810/ch810act5articles/ch810act5artstoc.htm


Do you know the exact citation? I have searched it at length. I'd like to include it in a settlement letter to the OC.

Also, does anyone know the rule that establishes jurisdiction for the SOL. I believe that the SOL applies in the state that you resided when you signed the agreement. However, there seems to be some question about some CC contracts specifically changing the venue to a more "creditor friendly" state.

 

Thanks for the info on the venue.

Any idea on the UCC section for SOL's on "open accounts"?

 

Ok. So I am back to my original post and confusion.

You have referenced the same section that I did in my original post. This is from the civil section, not the UCC.

I still am having trouble understanding if a credit card is considered one of the "all civil actions not otherwise provided for (735 ILCS 5/13-205)" or if it more likely falls into the definition "evidences of indebtedness in writing (735 ILCS 5/13-206)."

If it is the first, the SOL is 5 years. If it is the later, then it is 10 years.

I have seen the following SOL's on the net ==> (which is correct)

http://www.creditinfocenter.com/rebuild/statuteLimitations.shtml (they say it's 6)

http://www.carreonandassociates.com/statute.htm
(they say 6)

I have also seen 10 years.

 

bump

 

Thanks for the info. I do appreciate your time and effort

...BUT...

I don't think a judge will accept a hyperlink to a web site or their webmaster's opinion as law or fact. I am not concerned about the overall accuracy as I can see the statute contains the mentioned 5 and 10 year terms. I am more concerned about how an open account falls into the 5 year SOL. It could be argued that a credit card is a "written contract" and thus the SOL is 10 years.

The one piece of evidence I have found that supports the 5 year SOL is Toth v. Mansell, 207 Ill App 3d 665 (1990). This opinion states that a contract can only be considered written for the purposes of the statute of limitations if all essential terms are reduced to writing and can be ascertained from the instrument itself. It clearly outlines that parole evidence jurisprudence is not applicable.

The way I interpret that is that since credit cards require a signature on a receipt, and that the original contract cannot predict the amount of money spent over time, that the contract must be considered oral. (Clark 141 Ill app 3d 174 Weaver v. Watson, 130 Ill app 3d (1984), Novosk v. Reznick, 323 Ill app 544 (1944). Are my assertions correct?


I suppose a more accurately stated question would be :

"what is the definition of an open account and how does an open account apply to 735 ILCS 5/13-205"

 

For those in Illinois, who might have use for this info, here is the actual statute.


(735 ILCS 5/13-205)
Sec. 13-205. Five year limitation. Except as provided in Section
2-725 of the "Uniform Commercial Code", approved July 31, 1961, as
amended, and Section 11-13 of "The Illinois Public Aid Code", approved
April 11, 1967, as amended, actions on unwritten contracts, expressed or
implied, or on awards of arbitration, or to recover damages for an
injury done to property, real or personal, or to recover the possession
of personal property or damages for the detention or conversion thereof,
and all civil actions not otherwise provided for, shall be commenced
within 5 years next after the cause of action accrued.
(Source: P.A. 82-280.)

(735 ILCS 5/13-206)
Sec. 13-206. Ten year limitation. Except as provided in Section
2-725 of the "Uniform Commercial Code", actions on bonds, promissory
notes, bills of exchange, written leases, written contracts, or other
evidences of indebtedness in writing, shall be commenced within 10 years
next after the cause of action accrued; but if any payment or new
promise to pay has been made, in writing, on any bond, note, bill,
lease, contract, or other written evidence of indebtedness, within or
after the period of 10 years, then an action may be commenced thereon at
any time within 10 years after the time of such payment or promise to
pay. For purposes of this Section, with regard to promissory notes dated
on or after the effective date of this amendatory Act of 1997, a cause
of action on a promissory note payable at a definite date accrues on the
due date or date stated in the promissory note or the date upon which
the promissory note is accelerated. With respect to a demand promissory
note dated on or after the effective date of this amendatory Act of
1997, if a demand for payment is made to the maker of the demand
promissory note, an action to enforce the obligation of a party to pay
the demand promissory note must be commenced within 10 years after the
demand. An action to enforce a demand promissory note is barred if
neither principal nor interest on the demand promissory note has been
paid for a continuous period of 10 years and no demand for payment has
been made to the maker during that period.
(Source: P.A. 90-451, eff. 1-1-98.)

 

Latest info on the search:

It seems that there are droves of people who have this exact same problem in lots of different states.

The issue is that some state statutes clearly define an SOL using the exact words "open account" and some do not. For example, California specifically uses the words open account, Illinois does not. So the potential arguement arises about whether the credit card application is a written contract.

Just because the TILA defines a credit card as an open account, doesn't meant that the term open account and written account are mutually exclusive.

I wish the answer was that a credit card is an open account, not a written contract, and that the SOL was 5 years (in Ill), but it would be hard to convince an opposing attorney or a judge. I am not so sure I want to go to court empty handed and potentially have a judgement against me as well.

I have joined Lexis Nexis and have done a search and I come back with no citations or cases to prove my point or even a dissenting opinion. I am headed to the local law school library this weekend to do some more work.

I have ran into one person that has indeed tried to use the SOL defense in the state of Washington, which also has ambiguous language in the statute. She lost even when she presented the statute and the Truth in Lending Act definition of "open account". You can use the SOL defense as much as you want to intimidate the OC or the CA into doing what you want, but when it comes down to the lawyer or going to court, BEWARE. Check your statues or ask a lawyer.

Here is her e-mail replay to me (posted w/ consent).

> > > my court date was 5/20 and i lost big time. the judge i had would not
> >consider anything i had regarding the sol in washington state. he said
that
> >since they had a copy of the signed application that it was a written
> >contract. i tried to tell him about the truth in lending laws state that
a
> >credit card is an open account. his response was find for the plaintiff.
so
> >a charge off credit card of 1620 is now 4000. dont i feel special?! sorry
> >just a little pitty party for myself. i havent had the nerve to call the
> >lawyer yet to see if i can do a payment thing. i know i need to but i had
> >such high hopes of winning this. i worked on and worried about it for 5
> >months all for nothing. well i wish i could be telling you something that
> >you could use instead of my sob story. i wish you lot of luck and hope
you
> >have a better out come. let me know what happens i would be interested to
> >know. if you go to cardreport.com there is a person there that goes by
> >whychat this person helped me a great deal. (dont know if they are male
or
> >female) without them i would have NEVER had the courage to fight this. go
> >there and talk to him-her to see if they can help you too.. GOOD
LUCK!!!!

 

keeping the thread active

 

Thanks Love.

This site is certainly faster than the way I found it, which is by reading the entire statute.

However, the statute that the web site referrences is the same one that I mentioned in my posts above.

The statute language is ambiguous.

I am now hoping to find a court case where someone has already tried the SOL defense and won. This is the only way I know of to prove it to a judge.